Douglas Fisher

Water in its natural location has traditionally been regarded as a common resource to be used for the benefit of the community in question. The function of legal rules has been to grant access to the resource: for example, by the conferment of individual rights of access according to the common law or by the grant of such rights according to an institutionalized administrative system. In Australia the legacy of the common law favoured the common law riparian doctrine. The recognition of the unique environmental and climatic conditions in Australia influenced the development during the twentieth century of a public domain regime. This chapter analyzes these developments in Australia in the context of their wider doctrinal context. Keywords: Chapter 1 (Fisher): Common Resource, Roman law, Chinese law, public domain regime, riparian doctrine, Australian water law

Edited by Erkki J. Hollo

Erkki J. Hollo

The introductory note gives on overview of the main characteristics and structures of law relating to water management. The legal roots go far back into ancient cultures. In modern laws water resources are classified as public and private waters. Accordingly, in national laws property rights to waters are regulated differently. The differences are not relevant for planning and decision-making in matters concerning water management projects because here public interests and environmental concerns are decisive. International water law aims at solving conflicts between states concerning transboundary and international waters. This implies certain limitations on state sovereignty and respect for the interests of other parties to a watercourse. The leading principles have to some extent been developed on the basis of national models. One deficiency concerning compliance with international commitments is the lack of efficient control and practical sanctions, in particular in cases of hostile or careless neighbours. Keywords: Introduction (Hollo): International water law, European water law, water rights, basin principle, water governance

Edited by Erkki J. Hollo

Bulk Fresh Water, Irrigation Subsidies and Virtual Water

Fitzgerald Temmerman

In the near future, climate change and global warming could trigger international trade in (bulk) fresh water on a far larger scale then is presently already the case. In this context, the question whether bulk fresh water is to be considered as a ‘good’ or a ‘product’, falling under the ambit of the GATT, is highly controversial. In fact, no decisive legal arguments against such an inclusion currently exist. Therefore, as a precautionary measure, legal scholars advocate formally excluding bulk fresh water from falling under the ambit of the GATT. Could such a scenario, if not utopian, effectively hinder international trade in bulk fresh water from developing, once the need is there? Excluding bulk fresh water from the ambit of the GATT is perhaps not to be considered as particularly compelling, since the WTO framework potentially offers sufficient leeway to effectively take into account non-trade concerns, such as environmental rights and the right to water. KEYWORDS: Climate change – global warming – water – trade – WTO – GATT